U.S. v.

Sanchez
UNITED STATES, Appellee
V.
Jason J. SANCHEZ, Lance Corporal
U.S. Marine Corps, Appellant

No. 98-0635
Crim. App. No. 96-1020

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

Argued December 17, 1998
Decided July 30, 1999

COX, C.J., delivered the opinion of the Court, in which SULLIVAN, CRAWFORD,
GIERKE, and EFFRON, JJ., joined.

Counsel
For Appellant: Lieutenant Robert Attanasio, JAGC, USNR (argued); Major Albert
Diaz, USMCR (on brief).
For Appellee: Major M. K. Jamison, USMC (argued); Colonel K. M. Sandkuhler,
USMC, and Commander D. H. Myers, JAGC, USN (on brief); Lieutenant Russell J.
E. Verby, JAGC, USNR.
Military Judge: H. A. Hopson

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION

BEFORE PUBLICATION.

Chief Judge COX delivered the opinion of the Court.

In accordance with his plea, appellant was convicted at a general court-martial of
one specification of misprision of a serious offense, in violation of Article 134,
Uniform Code of Military Justice, 10 USC 934. He was sentenced to a badconduct discharge, 24 months confinement, forfeiture of all pay and allowances,
and reduction to the pay grade of E-1. Pursuant to the terms of a pretrial agreement,
all confinement in excess of 12 months was suspended for a period of 12 months.
Appellant asks us to set aside his conviction for two reasons. First, he asserts that his
conviction for misprision of a serious offense violated his Fifth Amendment right
against self-incrimination. Second, he asserts his plea was improvident because the
authorities had immediate knowledge of the offense, and thus appellant merely
concealed the identity of the assailant, which he claims does not fall within the
defined offense. See 50 MJ 206 (1998).
FACTS
While stationed in Okinawa, appellant and two of his friends, Lance Corporals
Trosper and Davis, went out one evening to the First Chance Saloon. While at this
bar, they met a Seaman Apprentice Simoneau, a Navy sailor also out on liberty.
They observed Simoneau open his wallet to pay for some T-shirts at a gift shop at
the bar and noticed that he had a large amount of cash.
Trosper remarked that Simoneau "should be taught a lesson [about] . . . waiving his
money around." After appellant finished a pool game, all three Marines decided to
leave to visit another bar. While on their way to the other bar, they all saw Simoneau
again and began talking with him. All four traveled from bar to bar until they wound
up at what appellant described as a purported "whore house."
Appellant and Trosper went up to the door of the house to knock while Simoneau
and Davis stood in a corner of the parking lot. Appellant and Trosper received no
answer at the door and decided to take the time to urinate against the wall. While
urinating, appellant heard someone yell, "Take my money, take my money. Its in
my pocket." At that point, appellant ran over to Davis and Simoneau and saw Davis
on top of Simoneau. At that time, appellant thought that Davis was punching
Simoneau. As he ran closer to both men, appellant realized that Davis was actually
stabbing Simoneau with a small blade, about 2-2 inches long -- the type that
would be attached to a key chain. Appellant yelled at Davis not to "stab him," in an
attempt to get Davis to throw the knife down. Davis did not drop the knife, and
appellant shook him and eventually pulled him away from Simoneau. Appellant and
his two friends then fled the scene, leaving Simoneau alone, lying injured.
The three men then attempted to return to the First Chance Saloon but saw that

people had begun to come out in an apparent attempt to look for the perpetrators.
They then decided to hail a cab to escape the area as quickly as possible, without
being detected.
Appellant knew a barracks that they could all stay at for the night on Kadena Air
Force Base, instead of returning to their base at Schwab, because the Marines
thought that someone might have been looking for them at Schwab. They
formulated a plan to ride back in government transportation with some Marines who
had duty in the area the next day.
That night, all three men agreed that they would not report the crime and that the
knife would have to be "thrown away." After they returned undetected to their unit,
all agreed that appellant should wear long-sleeved shirts during the rest of his time
in Okinawa because he had easily identifiable tattoos that someone might notice.
Appellant, in fact, did wear long-sleeved flannel shirts during off-duty hours for as
much time as he could tolerate doing so. It was hot in Okinawa during September
and October when appellant was wearing these shirts.
At the end of October 1995, appellant was permanently returning to the United
States from Okinawa and was stopped by a security policeman. The policeman
detained him because he had seen one of appellants distinctive tattoos -- a spider
web on his right elbow. Appellant was then held for questioning and confessed to
his involvement in the offense, as well as identifying the two other Marines who
were with him the evening that Simoneau was assaulted. Appellants reason for
not originally reporting the crime was because he did not want Davis to be detained
in Okinawa on legal hold because Daviss daughter had just been born in the
United States. Appellant wanted to give him a "second chance."
DISCUSSION
We first consider appellants argument that his conviction violated his Fifth
Amendment right against self-incrimination. He alleges that requiring him to report
the crime would require him to implicate himself as an accessory after the fact to the
aggravated assault.
We reject this argument as lacking merit under the facts of this case. Appellant could
have reported this offense immediately without incurring criminal liability. His
criminal actions came after his opportunity to report the offense first arose. If
appellant had acted at that time, the authorities would have been able to solve the
crime 1 months sooner than they did, and the victim would have received faster
medical attention. Although the victim managed to self-report the crime and seek
attention on his own, he would have been spared the risk of further injury or death if
appellant had sought assistance immediately. Appellant would have incurred no
personal, legal risk at that time.

Moreover, appellant pleaded guilty to the misprision charge. A guilty plea waives
most legal challenges against a conviction, unless preserved by conditional pleas.
See RCM 910, Manual for Courts-Martial, United States (1995 ed.). Additionally, at
least one federal court has held that a guilty plea waives a defendants defense that
his Fifth Amendment rights have been violated by a prosecution for misprision. See
United States v. Davila, 698 F.2d 715, 719 (5th Cir. 1983). There was no conditional
plea in this case. Thus, appellants argument not only lacks merit under the
specific facts of this case, but he waived any complaint by his guilty plea.
We also reject appellants second argument that his guilty plea was improvident.
Appellant argues that merely not reporting this offense does not rise to the level of
misprision because his only action was not reporting an offense of which the
authorities were already aware. He urges this Court to hold the only act that
constitutes misprision is concealing the offense. We disagree.
The Manual for Courts-Martial, supra, explains the "concealment" portion of the
offense as follows:
A mere failure or refusal to disclose the serious offense
without some positive act of concealment does not make
one guilty of this offense. Making a false entry in an
account book for the purpose of concealing a theft
committed by another is an example of a positive act of
concealment.
Para. 95(c)(3), Part IV.
Appellant took affirmative steps to conceal the identity of the offender after
commission of this offense. First, appellant discussed disposal of any evidence that
might link Davis to the crime, especially the knife that was used in the attack.
Appellant suggested that the three Marines stay the night of the offense at Kadena
Air Force Base to avoid detection and helped formulate a plan to secure
transportation back to Schwab, where the three were stationed. Appellant also
agreed to wear long-sleeved flannel shirts during hot weather in order to conceal his
identifiable tattoos. During his plea, appellant agreed that all of these actions were
affirmative steps to conceal the assault and were also prejudicial to good order and
discipline in the armed forces. In all, these actions clearly amount to affirmative
assistance supportive of a misprision conviction.
The gravamen of misprision is concealment. We are unpersuaded that concealing
the identity of the offender is any different than concealing the detection of the
offense. Both acts of affirmative concealment are equally and criminally culpable.
The facts admitted by appellant are sufficient to support his guilty plea to

misprision. There is nothing in the record inconsistent with his plea, and thus, there
is no "substantial basis" on which to disturb appellants conviction. See United
States v. Prater, 32 MJ 433, 437 (CMA 1991).
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is
affirmed.
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